Professors' salary history justifies pay gap, 4th Cir. says

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Dive Brief:

A University didn't engage in gender discrimination by basing pay for administrators-turned-faculty on their previous pay. "Just as this practice satisfies the Equal Pay Act's 'factor other than sex' affirmative defense, it qualifies as a legitimate, nondiscriminatory explanation under Title VII," the 4th U.S. Circuit Court of Appeals held in (Spencer v. Virginia State University, No. 17-cv-2453 (4th Cir. March 18, 2019)).

The court reached that conclusion in evaluating a sociology professor's equal pay suit. Dr. Zoe Spencer took Virginia State University to court, alleging discrimination. Spencer earned $70,000 a year, and she pointed to two male professors who earned more than $100,000 a year, according to the court documents.

A district court granted summary judgment for the university, and the 4th Circuit affirmed its ruling. The male professors weren't proper comparators, the appeals court said, but even if they had been, "unrebutted evidence shows that the University based [the two male professors'] higher pay on their prior service as University administrators, not their sex."

Dive Insight:

As high-level federal courts work to determine whether previous pay can justify pay gaps, Spencer promises to become a "pivotal" part of that discussion, at least in the higher education context, according to Kyle R. Elliot, a senior attorney at Ogletree Deakins. The 4th Circuit "took Spencer as an opportunity to correct course [from a previously decided case] and define what a plaintiff must prove to survive summary judgment as well as what a 'factor other than sex' entails," he wrote in a blog post for the firm.

Much of the discussion is focused on employees' pay at previous employers, which explains why several state and local governments attempting to remedy gender- and race-based pay gaps have barred employers from asking applicants about their pay histories. In Spencer, however, the employer generally paid former administrators who moved to a faculty role 9/12ths of their previous salary — apparently reasoning that professors work nine months out of the year, while administrators work year-round, the court said. The plaintiff argued that the two male professors hadn't met other prerequisites to be subject to that practice, but the court concluded that "even if the University erroneously applied its 9/12ths practice to overpay [them], such an imprudent decision would still serve as a non-sex-based explanation for the pay disparity."

The 9th Circuit will address this question again soon, as the U.S. Supreme Court recently vacated its ruling in Rizo v. Yovino in which the full court held that salary history alone can not justify gender pay gaps. The High Court sent the case back to the 9th Circuit because it counted the vote of Judge Stephen Reinhardt, who died 11 days before the decision was filed.